공소제기되지 않은 범죄사실을 형벌가중적 양형사유로 고려하는 문제 = Considering Uncharged Offenses as Aggravating Sentencing Factors

다국어 초록 (Multilingual Abstract)

Korean Supreme Court held that sentencing is, in principle, at the judge’s discretion. However, considering uncharged offenses that are not covered by the sentencing factors of Article 51 of the Criminal Act and not proven beyond reasonable doubt as essential aggravating sentencing factors cannot be permitted because it violates the principle of responsibility by punishing the defendant for an uncharged crime. However, as the meaning of the Supreme Court’s holding is unclear, this article seeks to clarify the case where the uncharged offenses cannot be considered as aggravating sentencing factors.
First, to determine whether the uncharged offense can be considered as sentencing factors of Article 51 of the Criminal Act, it is reasonable to examine the offense is related to the charged offense in indictment, rather than mechanically determining whether each subparagraph of Article 51 corresponds to the case. This is appropriate considering the Supreme Court’s holding(requesting determine “based on the offense for which indictment was filed”), U.S federal law’s approach on this issue and wording of Article 51 of the Criminal Act. However, it must also be examined whether procedural safeguard, such as the defendant’s right to defense, are protected during this process.
Next, as long as it is included in the sentencing factors of Article 51 of the Criminal Act, there is no inevitable reason to require proof to the extent of beyond the reasonable doubt. However, if the standard of proof is too lower than the prosecution, only the minimum crimes will be charged and the evidence of additional criminal activity is introduced during the sentencing phase and becomes aggravating sentencing factors. Also, considering the balance with the standard of proof required in civil litigation, it should be higher than ‘highly likelihood’. However, offenses that are not related to the indictment should not be considered as aggravating sentencing factors even if they are proven beyond reasonable doubt.
Above all, what is important in this matter is the balance between the principle of responsibility and an obligation to take into account as many facts as possible in sentencing. This article sought this balance in the existing system, but various legislative attempts can also be made in the future.